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Rural and Remote Education Inquiry Briefing Paper

G. Indigenous children's education rights

The principal issues concerning human rights in education for Indigenous children are raised in the inquiry's Briefing Paper on The Human Right to Education.

G1 Availability and accessibility

With respect to the availability and accessibility of education the Briefing Paper concludes

Whether education is accessible or available should be measured by objective criteria. Students must be able to access education without forfeiting other rights such as the right to rest or leisure or participation in family or cultural events. The right is also violated if accessing education is substantially harder or more onerous for one group than another or harder for a substantially higher proportion of one group over another.

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G2 Non-discriminatory

Every child has the right to education without discrimination.

Discrimination is most generally defined as 'any distinction, exclusion, restriction or preference based on an irrelevant ground (eg sex, race, colour or language) which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of a right on an equal footing'. Freedom from discrimination 'does not mean identical treatment in every instance' and certain legal exceptions do exist.

[T]he poor level of literacy among Aboriginal and Torres Strait Islander children might be seen as a breach of Article 28 of the Convention on the Rights of the Child. This article articulates the right of every child to education. Literacy is a basic outcome of education (ATSIC submission, page 35).

It is vital to appreciate that identical treatment which ignores relevant differences in fact has the effect of entrenching inequality and disadvantage. The inquiry was told that this is not widely appreciated in Australian education systems.

Australian governments are wedded to policies of formal equality. That is services and opportunities will be provided equally to all and some "special measures" of a temporary nature may be employed to overcome disadvantage. In this context the disadvantage of Aboriginal and Torres Strait Islander peoples ceases to exist when parity is reached with non-Indigenous people on socio-economic benchmarks. Such an approach provides for "special treatment" for as long as any group is formally unequal and takes it away when it is considered that the pendulum has swung to far.

A broader understanding of equality, and one which ATSIC supports, is that of substantive equality. Substantive equality provides that opportunities, services and structural responses (eg "different treatment") should be provided on the basis of people's specific needs and rights.

"Differential treatment may be necessary to respond adequately to the particular circumstances of a person or a group or to reflect the special character of their interests. ...Substantive equality recognises that different treatment is not only permitted, but may be required to achieve real fairness in outcome"44

Of particular relevance here is the international jurisprudence of the Convention on the Elimination of Racial Discrimination (CERD) and the Human Rights Committee on the principles of equality and non-discrimination. This body of jurisprudence establishes that not all differences in treatment are discriminatory; that is, equality does not mean identical treatment. Distinctions are not discriminatory where they pursue a legitimate aim. Special measures -or affirmative action - are sometimes required to redress inequality and to secure for members of disadvantaged groups full and equal enjoyment of their human rights. And particular regimes of minority rights are consistent with, and sometimes required to achieve factual or substantive equality.45

Thus, the protection of Indigenous peoples' distinct rights is also implicit in the concept of substantive equality. Positive measures of protection are necessary to achieve substantive equality and to accommodate the inherently different and distinct Indigenous identities. When considering equality for Indigenous peoples in the exercise and enjoyment of the right to education an assessment must be made in an Indigenous human rights context (ATSIC submission, page 31).

... understanding when we talk of equity of outcomes, we are talking about a fair go in terms of outcomes, and here of course we are talking about the cultural background of the students and the desire of parents for cultural inclusiveness within curriculum etc (John Bucknell, Aboriginal Independent Schools Unit, Broome hearing, 20 May 1999).

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G3 Education in culture and language

Indigenous children are entitled to receive an education which is culturally-appropriate and teaches them their language and culture as well as the mainstream language and culture. The objective is not identical education and outcomes but comparable and equally valued outcomes and opportunities.

It was argued in evidence that this right is being denied to Indigenous children in Australia.

... the continuing disparity between Indigenous and non-Indigenous Australians goes deeper than even the severe economic consequences. It becomes an issue about Indigenous students' basic human rights not being met, their right to receive a culturally appropriate education, one in which cultural identity, languages and values are not disregarded, and an education free from discrimination (David Curtis, ATSIC Commissioner, Melbourne hearing, 12 November 1999).

From the community consultations another view of successful outcomes for Indigenous people with regard to education, begins to emerge. When community people were asked on their views on what education and/or school was for, 'to be able to compete with mainstream kids and hopefully get a job' was the desire most had for themselves/their children. It also became clear that this should not be gained at any cost, and that Indigenous cultural values should not be disregarded (ATSIC submission, page 32).

Equity of educational outcomes means not just providing strategies to raise retention or graduation rates, but also incorporating Indigenous perspectives and raising awareness of Aboriginal and Torres Strait Islander issues and promotion of human rights generally within the education system. 'Aboriginal children need to be strong in their own cultural identity first' was how one parent expressed the need to counter 'some of the [misinformation] still being taught about Australian history and Indigenous cultures'. Again this is supported by Article 29 of CROC where it states that the education that is compulsorily provided is to instil respect in all children for cultural identity and values (ATSIC submission, page 33).

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G4 Bilingual education

With respect to whether Indigenous children whose first language is an Indigenous language have a right to receive a bilingual education the Briefing Paper on the Human Right to Education concludes

If the evidence establishes that Indigenous children have better education outcomes if taught, at least in part or for a time, in their own language, then the answer is clearly yes because Indigenous children have a right to full equality in education.

The importance of valuing Indigenous languages was described.

In our remote areas there are many linguistic backgrounds. These languages are the lifeline for the remote communities, because you cannot separate culture from language . Language gives identity, it gives self-esteem, it makes Indigenous people unique .... (Sister Anne Gardiner, Darwin hearing, 10 May 1999).

Four different ways to use two (or more) languages in education are described in the Definitions section of this Briefing Paper: language immersion, language submersion, bilingual and second language teaching. Children have a right to be taught in a way which ensures equity in education access and outcomes. Therefore, it is vital to appreciate which form of language teaching will achieve the best results.

UNICEF has concluded

School can be an alien and daunting place for the many . young children who begin classwork in a language different from their own. Compelled to adopt a second language when they are as young as four, five or six, these children must give up an entire universe of meaning for an unfamiliar one. They may also come to believe that the language they have known from birth is inferior to the language of school. In learning complex subjects such as mathematics and reading, they must undergo one of the greatest challenges they will ever face, yet the linguistic skills on which much of their cognitive faculties rest have suddenly been deemed irrelevant to the task at hand.

As these building blocks of knowledge crumble, so can the children's self-esteem and sense of identity. It is no wonder that so many of them struggle to stay in school and succeed ...

Experts increasingly recognize how important it is for children to use their mother tongue when they begin school. Use of this tongue validates their experiences. It helps them learn about the nature of language itself and how to use language to make sense of the world, including all aspects of the school curriculum.

The mother tongue is an essential foundation for learning.46

Children have another language right as well according to UNICEF, namely the right to learn the language of the dominant society.

... acquiring proficiency in a national language . also has advantages. It broadens communication and, later on, affords greater opportunities for higher education and jobs.47

Professor Lo Bianco's paper details some of the considerations, pre-requisites and barriers to success in each form with particular reference to the differences between language immersion and bilingual education.

1. Apparent contradiction

There is an apparent contradiction in the practice of two-language education. Immersion education has been found to be highly successful for children who are able to learn general subject matter and the target language (and maintain their English development) through the use of the target language as the principal medium of instruction. This success has been attested to in Canada, the USA, Australia and in Europe in many different kinds of what are essentially immersion methodologies.

However, immigrant or Indigenous minority children taught only in English (the target language) often not succeed in schooling to the same degree, lose mastery of their mother tongue and do not always attain high levels of standard English proficiency. Therefore it seems that the use of a language other than the home or mother tongue of learners can lead to educational success in the case of elites, why should this not apply to minorities when they are taught in English?

The similarities between immersion and bilingual education although they may seem to be substantial are more apparent than real. The following variables make the distinction clearer.

2. Bilingual or monolingual teachers

In immersion programs teachers tend to be bilinguals and the class language groups monolingual, or at least share a common language. This usually means that although teachers 'present a monolingual model' of the target language to the learners as their teaching approach (i.e. they do not use the learners' language) they are in fact bilingual and therefore accept first language communication from the students. This rarely applies in bilingual education. In bilingual programs with language minority children the teacher often does share a common language of communication with the learners.

3. Materials

Immersion programs are invariably extremely well resourced with adaptations of the regular curriculum in the target language, which is invariably a prestige international language.

4. Status

Immersion methodologies typically apply to social elites with significant capacity to exercise educational choice. Bilingual programs usually are typically language bridging initiatives in which children are assisted to continue their general education whilst they acquire the socially dominant language, and language of the curriculum, as a prelude to transferring their learning fully to that medium.

5. Monolingual learner groups

It is often the case that immersion programs are made up of monolingual common language learner cohorts. This is significant since knowledge of the constrastive differences between the target and the source language are part of the educational preparation of the teachers. In addition this means that learners and their bilingual teachers share a common language.

6. Additive/subtractive contexts

In minority language contexts the social circumstances of language shift are often in evidence. This means that there is progressive attrition of the mother tongue of the learners who are therefore gaining a temporary bilingualism as a prelude to monolingualism in the target or dominant language. In immersion contexts the reverse situation applies in that the learners are adding a socially esteemed skill to their established linguistic repertoire.

7. Time

For minorities involved in transitional bilingual education the time involved in gaining skill in the target language and the mother tongue has been found to be highly inadequate to the task. On the other hand, immersion children enjoy sustained and extensive long term opportunities to develop their bilingual proficiency.

8. The source language and its status

For immersion students the source language is typically the dominant language of the society and of the curriculum and usually the target language for minorities involved in bilingual education. This is a highly felicitous condition that makes a substantial impact on the kinds of programs that immersion versus bilingual instruction really are.

9. Justification or rationale

For immersion education the principal justificatory rationale is the greater demonstrated effectiveness of immersion education regarding the learning of esteemed languages.

In bilingual education there have been four main justifications: uninterrupted or minimally disrupted conceptual development; the claimed effects of early bilingualism on general intellectual development; the claimed enhanced ultimate acquisition of English; and fourth the socio-cultural and identity justifications to do with the connection between the child and its home language, culture and family.

In essence the educational principle on which transitional bilingual education has been based is the idea that uninterrupted conceptual development is a necessary precondition for allowing learners to participate in schooling at age appropriate norms. The main educational principle for maintenance bilingual education concerns the socio-cultural and identity rationale of advancing bilingualism as a personal and social asset.

10. Content conveyed in the languages

In immersion programs there is extensive effort to research the learners progress in the language, and to retain skill in the mother tongue, often by 're-labelling' knowledge gained in the language of instruction. A commensurate effort is not typically found in bilingual education programs.

Options

Utilising these distinctions in types and kinds of programs and some of the variables that are salient in thinking about the programs what are the general options that Australian schools might adopt for effective education. Effective education here means a bilingual and bicultural outcome from schooling involving least:

For Indigenous children who speak a language other than English as their principal language when they commence schooling the broad options are

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G5 Participation and attendance

The Convention on the Rights of the Child requires governments to introduce measures to limit school drop-out and also to make primary education compulsory. Measures to reduce truancy must be 'positive' rather than 'punitive'. Some witnesses were critical of anti-truancy measures as they affect Indigenous children.

At the beginning of the year the police put up a sign saying that children have to attend school and that if they do not their parents will be fined. Imposing fines on parents when their children don't attend school is not a good idea. It will only result in people being dragged into the criminal justice system if they can't pay the fine (Doomadgee Qld community meeting, 6 October 1999).

Maybe financial penalties [for non-attendance at school] could be imposed on parents pursuant to a council by-law rather than through the criminal justice system (Doomadgee Qld community meeting, 6 October 1999).

The right of Aboriginal and Torres Strait Islander peoples to ensure that their children receive a culturally appropriate education and the rights of all children to have a voice in the various aspects of their lives, provides the context against which to evaluate the success of mechanisms to provide compulsory free education. Education systems with compulsory attendance regimes therefore face the challenge of ensuring that the service provided meets human rights imperatives in terms of cultural and children's rights (ATSIC submission, page 32).

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Endnotes

44 HREOC Native Title Report, 1997-98
45 CERD General Recommendations XIV (1993), XXI (1996), XXIII (1997), General Comments of the Human Rights Committee: 12 (1984), 17 (1989), 18 (1989), 23 (1994).
46 Carol Bellamy, The State of the World's Children 1999: Education, UNICEF, 1999, page 44.
47 Ibid.

Section H:
Recommendations to the inquiry

Last updated 2 December 2001.